**6. Burden of proof for the non-conformity of the goods with the standard**

As a general principle, the allocation of the burden of proof under the Act, seeks to know whether or not the goods are presently in conformity with the applicable standard as contained in Article 255. This mostly guided by the principle of proof proximity, which states that conformity or non-conformity of any good is determined by the individual who is in possession of the said good. This means that when a good is still with the seller, he/she is in the rightful position to establish and prove that the said good conforms or not. By the same token, once the buyer purchases the good, he/she assumes the responsibility of *establishing conformity or non-conformity of the good in the case of an incident.*

One relevant general principle under the UAGCL is that the assessment of the conformity of goods sold starts upon delivery32. In fact, it is understandable that it is the buyer's obligation to examine the goods in view to reveal any lack of conformity. Therefore, the law grants an opportunity to the buyer to inspect the goods and report to the seller whether or not the goods are in conformity with the contractual obligation as agreed upon with the seller [22]. The question that arises is whether the buyer's knowledge, usually derived from having an opportunity of pre-contractual examination of the goods, should be relevant to deciding what conformity obligations were imposed on the seller by the contract and, even if not, whether the facts of the buyer's inspection or assessment is hardly relevant to determine the content of the seller's obligation33.

The philosophy behind the application of Article 255 UAGCL directs that a buyer ought to be able to rely on the agreed arrangements. Therefore, if there is any discrepancy between the contract and the goods inspected, the buyer has a right to cause the seller to redress the situation. This applies regardless of whether the buyer knows of a defect, or if it was agreed that the seller shall deliver the goods without defects [23]. At this point, the parties must be assumed to have expressed their wishes in their written agreement in relation to the requirements for the goods in question. This means that an analogous or expanded interpretation of the provision so as to apply it to Article 255 para. 1 of the Uniform Act seems in principle to be a restricted application of the *caveat emptor* principle.

When reference is made by the contracting parties, what is normally meant is inspection by the buyer. However, control of quality may also be effected by the seller, in which case its quality certificate is attached to other documents (which is significant in respect of certain goods since quality may be considerably affected during transport by reason of environmental and other circumstances). This method of inspection is provided by some governmental or international bodies. The certificate of inspection is the only proof of what it is bound to furnish under the contract. There is, however, another view to the effect that the other party is always entitled to a further inspection34.

The answers to these preoccupations exert an influence on contract interpretation depending on the particular circumstances. Presumably, these points are too obvious for the drafters of the Uniform Act not to have been aware of them considering the fact that Article 255 para. 1 does not concern the terms implied by default but concerns what the contract itself provides. This clearly shows the limits of the application of the concept of conformity under the Act which presumably seems to be detrimental to the business climate. In actual fact, in addition to that standards contained in the contractual stipulations, other national and international norms of goods need to be considered. Rapid technological changes with a corresponding impact on consumer behaviour is taking place within an increasingly liberalised marketplace in which the global drive to compete brings new challenges to regulatory authorities in setting up conformity standards of goods.

From the above strand of reasoning, it is certain that irrespective of the contractual stipulations, it is also of prime importance to note that the commercial buyer

**255**

is not clearly defined.

when delivery has taken place.

kind of defects the buyer is expected to reveal.

*6.1.1 Which risks are transferred to the buyer?*

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

information which was brought to him by the seller.

the meaning of the subjective understanding of a "defect" [24].

could dictate other requirements to the seller as driven by the desires of consumers. In addition, there is also necessity of the seller to have knowledge of surrounding facts requiring the goods to conform with certain local and international standards. Nevertheless, no matter the argument, the buyer's evidence as to any lack of conformity can only be validated through his duty to examine as well as supported by any

**6.1 Burden of proof for the non-conformity of the goods at the time risk passes**

In real commercial practice, there is usually the practical difficulty in ascertaining the allocation of the burden of proof with the purpose of establishing a defect of conformity of the goods which already existed at the time risk passed, or existed before that time. The situation under the Act is ambiguous in that there is no clarity with regard to the charge on the seller who deals in goods that do not conform or are observed to have hidden defects. Moreover, the Act does not clearly spell out the seller's responsibility when his/her goods are defective or *do not conform as a result of a particular kin*d. Arguably, the notion of conformity under the Act falls within

As an evidence to the forgoing fact, the purport of Article 256 UAGCL which suggests the fact that a buyer can only make a case for any lack of conformity after the risk passes irrespective of the nature of the defect. In fact, the strong implication is that the burden of proof has shifted onto the buyer in order to establish the seller's liability when delivery has duly been effected. Most often when the buyer verifies a good to be purchased, the intension is hardly to establish its actual state; rather he/she tries to determine the good's non-conformity aspects in order to demand immediate reparation. The new Uniform Act has further empowered the buyer to notify the seller of any observable defect. Despite this responsibility given to the buyer, the nature or kind of defect the buyer is supposed to report to the seller

There remains, however, a serious problem about the kind of defects which the buyer is expected to report to the seller. Nevertheless, a clear right of action has been imposed unto the buyer to establish the seller's responsibility for apparent defects and for hidden defects35 discovered by the commercial buyer particularly

At this juncture, it would be necessary to make an inquiry into the type of risk that can be transferred or passed to the buyer after delivery before examining the

Risk of "loss" in a sales context refers to the allocation of financial responsibility for the injury or destruction of goods that occurs whilst the goods are changing hands from seller to buyer [25]. To identify the appropriate moment for passage of this risk is the task of the law governing risk of loss. That law is currently found in Article 277 *et seq*. of the Uniform Act. The Uniform Act contains no definition of the types of risks governed by the rules on transfer of risk, thus leaving uncertainty.

First, one must look at the risks that fall within the scope of the Act36.

defects must be hidden defects (vices cachés), unknown to the buyer.

tion with a sale but not governed by the Uniform Act. (Art 235(b)).

<sup>35</sup> Under art 1641 of the French Civil Code, for the purpose of an implied or legal guarantee, the

<sup>36</sup> For example, in complex agreements, a part concerning services may entail a certain risk in conjunc-

<sup>32</sup> Uniform Act, arts 256 & 258.

<sup>33</sup> Uniform Act, art 258.

<sup>34</sup> Uniform Act, art 256.

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

*of the good in the case of an incident.*

content of the seller's obligation33.

restricted application of the *caveat emptor* principle.

tory authorities in setting up conformity standards of goods.

always entitled to a further inspection34.

a good is still with the seller, he/she is in the rightful position to establish and prove that the said good conforms or not. By the same token, once the buyer purchases the good, he/she assumes the responsibility of *establishing conformity or non-conformity* 

One relevant general principle under the UAGCL is that the assessment of the conformity of goods sold starts upon delivery32. In fact, it is understandable that it is the buyer's obligation to examine the goods in view to reveal any lack of conformity. Therefore, the law grants an opportunity to the buyer to inspect the goods and report to the seller whether or not the goods are in conformity with the contractual obligation as agreed upon with the seller [22]. The question that arises is whether the buyer's knowledge, usually derived from having an opportunity of pre-contractual examination of the goods, should be relevant to deciding what conformity obligations were imposed on the seller by the contract and, even if not, whether the facts of the buyer's inspection or assessment is hardly relevant to determine the

The philosophy behind the application of Article 255 UAGCL directs that a buyer ought to be able to rely on the agreed arrangements. Therefore, if there is any discrepancy between the contract and the goods inspected, the buyer has a right to cause the seller to redress the situation. This applies regardless of whether the buyer knows of a defect, or if it was agreed that the seller shall deliver the goods without defects [23]. At this point, the parties must be assumed to have expressed their wishes in their written agreement in relation to the requirements for the goods in question. This means that an analogous or expanded interpretation of the provision so as to apply it to Article 255 para. 1 of the Uniform Act seems in principle to be a

When reference is made by the contracting parties, what is normally meant is inspection by the buyer. However, control of quality may also be effected by the seller, in which case its quality certificate is attached to other documents (which is significant in respect of certain goods since quality may be considerably affected during transport by reason of environmental and other circumstances). This method of inspection is provided by some governmental or international bodies. The certificate of inspection is the only proof of what it is bound to furnish under the contract. There is, however, another view to the effect that the other party is

The answers to these preoccupations exert an influence on contract interpretation depending on the particular circumstances. Presumably, these points are too obvious for the drafters of the Uniform Act not to have been aware of them considering the fact that Article 255 para. 1 does not concern the terms implied by default but concerns what the contract itself provides. This clearly shows the limits of the application of the concept of conformity under the Act which presumably seems to be detrimental to the business climate. In actual fact, in addition to that standards contained in the contractual stipulations, other national and international norms of goods need to be considered. Rapid technological changes with a corresponding impact on consumer behaviour is taking place within an increasingly liberalised marketplace in which the global drive to compete brings new challenges to regula-

From the above strand of reasoning, it is certain that irrespective of the contractual stipulations, it is also of prime importance to note that the commercial buyer

**254**

<sup>32</sup> Uniform Act, arts 256 & 258. <sup>33</sup> Uniform Act, art 258. <sup>34</sup> Uniform Act, art 256.

could dictate other requirements to the seller as driven by the desires of consumers. In addition, there is also necessity of the seller to have knowledge of surrounding facts requiring the goods to conform with certain local and international standards. Nevertheless, no matter the argument, the buyer's evidence as to any lack of conformity can only be validated through his duty to examine as well as supported by any information which was brought to him by the seller.

#### **6.1 Burden of proof for the non-conformity of the goods at the time risk passes**

In real commercial practice, there is usually the practical difficulty in ascertaining the allocation of the burden of proof with the purpose of establishing a defect of conformity of the goods which already existed at the time risk passed, or existed before that time. The situation under the Act is ambiguous in that there is no clarity with regard to the charge on the seller who deals in goods that do not conform or are observed to have hidden defects. Moreover, the Act does not clearly spell out the seller's responsibility when his/her goods are defective or *do not conform as a result of a particular kin*d. Arguably, the notion of conformity under the Act falls within the meaning of the subjective understanding of a "defect" [24].

As an evidence to the forgoing fact, the purport of Article 256 UAGCL which suggests the fact that a buyer can only make a case for any lack of conformity after the risk passes irrespective of the nature of the defect. In fact, the strong implication is that the burden of proof has shifted onto the buyer in order to establish the seller's liability when delivery has duly been effected. Most often when the buyer verifies a good to be purchased, the intension is hardly to establish its actual state; rather he/she tries to determine the good's non-conformity aspects in order to demand immediate reparation. The new Uniform Act has further empowered the buyer to notify the seller of any observable defect. Despite this responsibility given to the buyer, the nature or kind of defect the buyer is supposed to report to the seller is not clearly defined.

There remains, however, a serious problem about the kind of defects which the buyer is expected to report to the seller. Nevertheless, a clear right of action has been imposed unto the buyer to establish the seller's responsibility for apparent defects and for hidden defects35 discovered by the commercial buyer particularly when delivery has taken place.

At this juncture, it would be necessary to make an inquiry into the type of risk that can be transferred or passed to the buyer after delivery before examining the kind of defects the buyer is expected to reveal.

#### *6.1.1 Which risks are transferred to the buyer?*

Risk of "loss" in a sales context refers to the allocation of financial responsibility for the injury or destruction of goods that occurs whilst the goods are changing hands from seller to buyer [25]. To identify the appropriate moment for passage of this risk is the task of the law governing risk of loss. That law is currently found in Article 277 *et seq*. of the Uniform Act. The Uniform Act contains no definition of the types of risks governed by the rules on transfer of risk, thus leaving uncertainty. First, one must look at the risks that fall within the scope of the Act36.

<sup>35</sup> Under art 1641 of the French Civil Code, for the purpose of an implied or legal guarantee, the defects must be hidden defects (vices cachés), unknown to the buyer.

<sup>36</sup> For example, in complex agreements, a part concerning services may entail a certain risk in conjunction with a sale but not governed by the Uniform Act. (Art 235(b)).

#### *6.1.1.1 Liability for loss or damage to the goods*

The wording used in the Uniform Act is "loss or deterioration"37 contained in the Article 277 para. 2. Physical risks to the goods including their destruction are covered by the concept of "loss". The Uniform Act's risk-of-loss rules clearly limit their ambit to loss or damage to "the goods" (that is, the goods sold) or "in respect of goods sold". By analogy, the causes of loss could be broad encompassing disappearance of the goods, including theft, misplacing the goods, their transfer to a wrong address or person, and mixing up the goods with other goods are included.

This situation was vivid during a field trip conducted by the researcher in markets of some big cities in Cameroon: Douala and Yaoundé38. Most big merchantsellers of second- hand goods like shoes for example find in their bulk of goods damaged shoes and because the risk has already been transferred to them by their supplier in their country, such as Dubai and China, they are unable to return the goods. Therefore, because of financial interest, they are forced to sell them at relatively cheap prices.

Another concern is the documents pertaining to the goods. The risk-of-loss rules of the Uniform Act apply as easily to documents as to goods. This study rather holds strong to the fact that the risk -of- loss of a document connected to the goods, should simultaneously pass together with the risk for the goods. The time and place to hand documents may at times not reach the buyer concurrently. In a case where there exists no agreement to this effect, the delivery of documents may be expected just in time for their use, for taking delivery of the goods or for their import in accordance with the trade usage39. Thus, if the documents are lost before they are delivered; the risk would not be treated similarly as for goods. Consequently, the holding of relevant documents of the goods by the seller does not affect the passing of risk40. The buyer could rather be contended to claim remedies for non-conforming delivery of documents, by applying to the courts for avoidance of the contract, which would stop risk relating to those documents from passing41.

#### **7. Proof as matter regulated under the uniform Act**

Considering that Article 255 of the Act neither states the liability attached to proof nor points out on whom the responsibility of determining the conformity and non-conformity standard of a good as well as the timeframe of declaring such information, UAGCL principle have to be applied to establish the seller's liability in a case where a purchased good does not conform with acceptable standards.

Nonetheless, one relevant general principle under the UAGCL is that a party who asserts a right must prove the necessary preconditions for the existence of that right. This is clearly evident under Articles 258 and 259 para. 1, which gives the burden to the buyer to notify the seller cases of lack of conformity. The buyer's right to do so is to ensure the seller's obligation in delivering goods in conformity with the express contract terms pursuant to Article 255 para. 1 of the UAGCL. It suggests that the burden of proof includes the burden of adducing the relevant evidence and

**257**

prove their non-conformity." <sup>43</sup> The author's translation.

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

general principles underlying the UAGCL.

*his contractual obligations43.*

expressly elaborate on the principle of proof proximity44.

party raising a claim and a party claiming an exception or raising a defence.

burden of proof 42.

It states:

the burden of persuasion. This comes into play by the reliance of the buyer on the seller's conformity obligation. In other words, an exception to the buyer's expectation to the goods fit for a particular purpose, and the burden of proof of the preconditions for that exception lies with the seller. However, if the seller does not raise the issue of reliance, the goods' fitness under Article 255 para. 2 will be presumed. The "rule and exception" principle of the allocation of burden of proof may not always be applied strictly in practice because the burden of adducing evidence is sometimes placed on a party who simply has better access to evidence but who would not otherwise bear this burden on strict principles of the allocation of

From the above, as well as in line with Articles258 and 259 para. 1, it can be deduced that the buyer has to prove the factual prerequisites of the provisions upon which he wants to rely for its claim or defence. It follows from the above that in absence of an explicit regulation in the UAGCL, the allocation of the burden of proof in relation to the various factual requirements in establishing the seller's liability for non-conforming goods has to be exercised primarily on the basis of the

These general principles are to be found first of all in the few provisions which explicitly address the question of burden of proof, in particular Article 294(1).

*A party is excused from his duty to render performance if he can prove that it is made impracticable without his fault by the occurrence of an event, namely; due to a third party or the occurrence of a force majeure. A force majeure entails events which happen beyond the party's control and which could not be reasonably foreseeable. However, there is no exemption if the failure to perform has been caused by a third party appointed by the defaulting party to perform all or part of* 

Inherent in these general statements of excuse are four elements: (1) performance has become impracticable; (2) the non-occurrence of the cause of impracticability was due to *force majeure*; (3) the party asserting the excuse is without fault; and (4) the party seeking excuse did not assume greater obligations in the contract. On the strength of this, as well as in accordance with Articles 235 (a) and 282 UAGCL it can be deduced that each party is under the obligation to prove the factual prerequisites of the provisions as the basis of his/her complaint and justification. This situation originates from Roman practice expressed in Latin as *ei incumbit probatio, qui dicit non qui negator actori incumbit probatio*; translated in English as 'rule and exception-principle.' It is important to underline that the respect of equity is the driving force behind this rule, since both the UAGCL and the CISG do not

This rule is supplemented or modified by considerations of equity according to which each party has to prove those facts which originate from its sphere. The basis for this principle proof proximity in the UAGCL as in the CISG is less clear [26, 27]. Consequently, the courts will presumably generally limit themselves in

<sup>42</sup> "If the buyer rejects the goods by invoking their non-conformity the seller must prove that the goods are in conformity with the contract; if the buyer already accepted the goods the buyer would have to

<sup>44</sup> Sometimes this rule is broken down into two separate rules distinguishing between the burden for a

<sup>37</sup> This is the author's translation of the French version of the UAGCL, which uses the words: "la perte ou la deterioration".

<sup>38</sup> The Nkoulouloun and Mokolo markets respectively.

<sup>39</sup> Uniform Act, art 254.

<sup>40</sup> Uniform Act, art 278 para. 2.

<sup>41</sup> Uniform Act, art 281 & 296.

#### *Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

relatively cheap prices.

*6.1.1.1 Liability for loss or damage to the goods*

The wording used in the Uniform Act is "loss or deterioration"37 contained in the Article 277 para. 2. Physical risks to the goods including their destruction are covered by the concept of "loss". The Uniform Act's risk-of-loss rules clearly limit their ambit to loss or damage to "the goods" (that is, the goods sold) or "in respect of goods sold". By analogy, the causes of loss could be broad encompassing disappearance of the goods, including theft, misplacing the goods, their transfer to a wrong address or person, and mixing up the goods with other goods are included. This situation was vivid during a field trip conducted by the researcher in markets of some big cities in Cameroon: Douala and Yaoundé38. Most big merchantsellers of second- hand goods like shoes for example find in their bulk of goods damaged shoes and because the risk has already been transferred to them by their supplier in their country, such as Dubai and China, they are unable to return the goods. Therefore, because of financial interest, they are forced to sell them at

Another concern is the documents pertaining to the goods. The risk-of-loss rules of the Uniform Act apply as easily to documents as to goods. This study rather holds strong to the fact that the risk -of- loss of a document connected to the goods, should simultaneously pass together with the risk for the goods. The time and place to hand documents may at times not reach the buyer concurrently. In a case where there exists no agreement to this effect, the delivery of documents may be expected just in time for their use, for taking delivery of the goods or for their import in accordance with the trade usage39. Thus, if the documents are lost before they are delivered; the risk would not be treated similarly as for goods. Consequently, the holding of relevant documents of the goods by the seller does not affect the passing of risk40. The buyer could rather be contended to claim remedies for non-conforming delivery of documents, by applying to the courts for avoidance of the contract,

Considering that Article 255 of the Act neither states the liability attached to proof nor points out on whom the responsibility of determining the conformity and non-conformity standard of a good as well as the timeframe of declaring such information, UAGCL principle have to be applied to establish the seller's liability in

Nonetheless, one relevant general principle under the UAGCL is that a party who asserts a right must prove the necessary preconditions for the existence of that right. This is clearly evident under Articles 258 and 259 para. 1, which gives the burden to the buyer to notify the seller cases of lack of conformity. The buyer's right to do so is to ensure the seller's obligation in delivering goods in conformity with the express contract terms pursuant to Article 255 para. 1 of the UAGCL. It suggests that the burden of proof includes the burden of adducing the relevant evidence and

<sup>37</sup> This is the author's translation of the French version of the UAGCL, which uses the words: "la perte ou

a case where a purchased good does not conform with acceptable standards.

which would stop risk relating to those documents from passing41.

**7. Proof as matter regulated under the uniform Act**

**256**

la deterioration".

<sup>39</sup> Uniform Act, art 254. <sup>40</sup> Uniform Act, art 278 para. 2. <sup>41</sup> Uniform Act, art 281 & 296.

<sup>38</sup> The Nkoulouloun and Mokolo markets respectively.

the burden of persuasion. This comes into play by the reliance of the buyer on the seller's conformity obligation. In other words, an exception to the buyer's expectation to the goods fit for a particular purpose, and the burden of proof of the preconditions for that exception lies with the seller. However, if the seller does not raise the issue of reliance, the goods' fitness under Article 255 para. 2 will be presumed.

The "rule and exception" principle of the allocation of burden of proof may not always be applied strictly in practice because the burden of adducing evidence is sometimes placed on a party who simply has better access to evidence but who would not otherwise bear this burden on strict principles of the allocation of burden of proof 42.

From the above, as well as in line with Articles258 and 259 para. 1, it can be deduced that the buyer has to prove the factual prerequisites of the provisions upon which he wants to rely for its claim or defence. It follows from the above that in absence of an explicit regulation in the UAGCL, the allocation of the burden of proof in relation to the various factual requirements in establishing the seller's liability for non-conforming goods has to be exercised primarily on the basis of the general principles underlying the UAGCL.

These general principles are to be found first of all in the few provisions which explicitly address the question of burden of proof, in particular Article 294(1). It states:

*A party is excused from his duty to render performance if he can prove that it is made impracticable without his fault by the occurrence of an event, namely; due to a third party or the occurrence of a force majeure. A force majeure entails events which happen beyond the party's control and which could not be reasonably foreseeable. However, there is no exemption if the failure to perform has been caused by a third party appointed by the defaulting party to perform all or part of his contractual obligations43.*

Inherent in these general statements of excuse are four elements: (1) performance has become impracticable; (2) the non-occurrence of the cause of impracticability was due to *force majeure*; (3) the party asserting the excuse is without fault; and (4) the party seeking excuse did not assume greater obligations in the contract.

On the strength of this, as well as in accordance with Articles 235 (a) and 282 UAGCL it can be deduced that each party is under the obligation to prove the factual prerequisites of the provisions as the basis of his/her complaint and justification. This situation originates from Roman practice expressed in Latin as *ei incumbit probatio, qui dicit non qui negator actori incumbit probatio*; translated in English as 'rule and exception-principle.' It is important to underline that the respect of equity is the driving force behind this rule, since both the UAGCL and the CISG do not expressly elaborate on the principle of proof proximity44.

This rule is supplemented or modified by considerations of equity according to which each party has to prove those facts which originate from its sphere. The basis for this principle proof proximity in the UAGCL as in the CISG is less clear [26, 27]. Consequently, the courts will presumably generally limit themselves in

<sup>42</sup> "If the buyer rejects the goods by invoking their non-conformity the seller must prove that the goods are in conformity with the contract; if the buyer already accepted the goods the buyer would have to prove their non-conformity."

<sup>43</sup> The author's translation.

<sup>44</sup> Sometimes this rule is broken down into two separate rules distinguishing between the burden for a party raising a claim and a party claiming an exception or raising a defence.

#### *Banking and Finance*

stating the existence of the principle without giving any further justification. The proof proximity pays attention to the ability of the party to gather evidence as well as the relevant facts and issues presented as proof. This implies that once a good is delivered to a buyer without a prior indication of deficiency from him/her (the purchaser), the responsibility to prove any claim based on lack of conformity of the delivered good becomes that of the buyer. This seems to be the spirit surrounding the provision of Article 256 of UAGCL. It states:

*Conformity of the goods shall be appraised as of the day of delivery, even if defects appear only later45.*

The rules on conformity under the UAGCL are by no means an exception in dealing with issues of proof as the case under the CISG. The point to be addressed here in the first place is the burden of proof. The burden of proof is not a legal obligation, but by its legal nature, a duty. The duty represents an obligation to oneself and not to the other party in a contract. The duty to proof is closely connected with the buyer's duty to examine the goods and to notify the seller. Namely, the seller will be liable for the non-conformity of delivered goods only if the buyer gives notice pursuant to Article of the UAGCL.

The main purpose of the examination is to determine whether or not the goods are in conformity with the contract, that is, to reveal defects in quality, quantity, description and packaging. In fact, it is only on the result of the examination that the buyer can make a claim for nonconformity. It follows therefore that, burden of proving non-conformity rests on the buyer.
